Parallel to the COVID-19 pandemic, another problem spreading through society is a sort of pandemic of misinformation in the media, social networks, as well as in the form of text and voice messages circulating on mobile networks. The most effective measures against the spread of the virus – self-isolation, curfews and border closures – are powerless in stopping the movement of misinformation globally and nationally. The activity of carriers of misinformation must be stopped by different measures.
The Government of the Srpska Republic has, at the initiative of the Ministry of the Interior, announced the Decision on Prohibition of Spreading Panic and Disorder During the State of Emergency Declared on the Territory of the Srpska Republic. This means that, during the state of emergency, it is forbidden to publish or transmit fake news and allegations that cause panic or severely disturb public peace and order, and impede or significantly impede implementation of decisions and measures of public authorities or organizations. Prohibitions apply to such activities conducted through the media, social networks or through similar means.
In the event of violation of this Decision, the police departments of local governments will issue infringement warrants.
The sanctions are foreseen in the form of pecuniary fines. For individuals and responsible persons in legal entities, the stipulated fine is BAM 1000 – 3000, while the fine for legal entities is BAM 3000 – 9000.
We would like to clarify what this means for companies and other legal entities in practice. If, for example, a company spreads false allegations on its social networks, the fines will be applied to both the responsible individual in that company (with the penalty stipulated for individuals) as well as to the company as a separate legal entity, and the fine for legal entities will also be charged from its account. It is expected that the media, as legal entities, should also be held accountable in accordance with the above principle, and the fine should be paid by the media company itself as well as its editor-in-chief (as an individual). If all penalties are summed for all published or transferred misinformation or allegations that spread panic, the final fine may be higher.
The question is whether transmitters of misinformation and similar allegations will be punished for the very act of spreading them, or if the actual realization of consequences (spread of panic, disruption of public order and peace, or obstruction of public authorities enforcement of measures) would be necessary.
Furthermore, another legal issue that allegedly arose in Srpska Republic with the first issuance of an infringement warrant for violation of the Decision is the question of retroactive application. As reported by the media, during delivery of the first infringement warrant, the offender referred to the non-retroactivity principle, since he conducted the actions from the infringement warrant before the Decision was announced. It seems that the Decision of the Government of the Srpska Republic to punish the spread of panic by misinformation is proportionate to its objective, even though it restricts freedom of expression. The question here is if the suspension of constitutional non-retroactivity principle is also allowed. The Constitution of the Srpska Republic stipulates that exceptionally, only some provisions of laws can have retroactive effects if it is required by the interest of the general public as established in the procedure of adopting that law.
The Ministry of the Interior will take care of ensuring compliance with this Decision. The task of the Ministry will be to obtain the data about the offender from the provider using the IP address of the misinformation carrier. Therefore, in such circumstances, it is important for all internet users to have a wifi password that will not be known to a wider circle of people because if someone uses your wifi to spread misinformation, you would have to prove that it was not sent from your device.
We are not going to list the numerous misinformation and allegations that spread panic and fear in order to avoid their further spread, but surely all citizens in the region have come in contact with this type of “pest” and can remember at least one such message. Acting responsibly on this occasion implies restraint of movement of people, but also, it requires increased self-control in the context of sharing of unverified (mis)information. However, as we were getting more details on the news about the delivery of the first infringement warrant, our attention was drawn by a news article in the corner of our display, published by the same portal whose headline begins with the words “by [this] Summer, some [will be] alive and some dead”. Is this type of news also a reason for issuing an infringement warrant?
For more information, please contact us via covid19@geciclaw.com
